The Sept. 11 trial judge twice expelled one of the accused 9/11 plotters from a pretrial hearing Tuesday for lodging a noisy protest about prison camp conditions.
Army Col. James Pohl ordered guards to remove Ramzi Bin al Shibh from the maximum-security war court at this U.S. Navy base after the Yemeni captive ignored several warnings.
Pohl was trying to get Bin al Shibh, 41, to acknowledge that he had the right to voluntarily skip the hearings. Bin al Shibh refused to say “yes” or “no.” Instead he complained, at times through his lawyer, that he had another sleepless night at the secret Camp 7 prison punctuated by guards banging on doors and other disruptions.
At one point Bin al Shibh shouted, in fuzzy audio on a 40-second delay from the sealed war-court chamber: “It’s a secret CIA prison,” he said in English. “Nobody knows it. Nobody enters it. Nobody sees it.”
Pohl had the Yemeni brought back into court after a lunch and Bin al Shibh renewed his protest, at times invoking the word “torture.” Army guards in battle dress once again hustled him from the maximum-security courtroom as the alleged terrorist yelled, “You are a war criminal, judge.”
At issue is the long-running complaint by Bin al Shibh that guards cause vibrations and other noises at his Camp 7 cell in a form of military orchestrated sleep deprivation. Prosecutors deny the misbehavior has occurred at the clandestine prison camp run by a special guard force called Task Force Platinum.
This summer, Pohl ordered the prison to stop it, if it was happening.
In court Tuesday morning, he suggested to Bin al Shibh’s lawyers that they either file a motion for an evidentiary hearing or seek mental-health advice. “I don't know if he's actually suffering this or if it’s in his mind,” the judge said.
Navy Lt. Cmdr. Kevin Bogucki, defending Bin al Shibh, replied that his client is not delusional. He accused the Camp 7 guard force of ignoring the judge’s order. Bogucki said when Bin al Shibh invokes the judge’s order to protest guard disruption, the troops respond that they are following prison camp Standard Operating Procedures.
Bin al Shibh was held in a lockup behind the court equipped with a closed-circuit video screen. The transmission capability lets the accused watch the proceedings while his attorneys and translator remain in the courtroom.
After Tuesday afternoon’s outburst, judge Pohl put defense attorneys on notice that there was a risk that a defendant who says anything more than “yes” and “no” could spill classified information during the court proceedings.
The Sept. 11 trial defendants were held for years in the CIA’s secret overseas prison network as captives of the agency’s Bush-era Rendition, Detention and Interrogation program. The Obama White House has not declassified it.
So where the CIA imprisoned them and what interrogation techniques agents used beyond waterboarding alleged mastermind Khalid Sheik Mohammed 183 times are considered national security secrets at the Guantánamo war court. A court security officer at the judge’s elbow has his finger on a mute button inside the court, to stop the public from hearing those and other secrets with the aid of the 40-second audio delay.
Defense lawyers on Monday said they interpreted a sealed ruling by Pohl to mean that the captives’ memories and experiences aren’t classified.
Pohl’s remarks on Tuesday suggested otherwise.
In between the outbursts, defense lawyers argued a “defective referral” motion designed to derail the proceedings or get the judge to remove the death-penalty as the ultimate punishment, if the men are convicted.
Defense lawyers say in the Pentagon’s rush to arraign the men May 5, 2011 they weren’t given time, resources or a secure attorney-client relationship to prepare a proper brief arguing against it being a death case at the time.
Bin al Shibh is the longest-held of the 9/11 trial defendants. He was captured in Pakistan on Sept. 11, 2002. He has often used the pretrial hearings, meant to set conditions for the eventual death-penalty trial, to air complaints about his conditions of confinement.
As far back as 2009, he complained through his lawyer that guards were pumping foul smells and loud noises into his cell and vibrating his bed. In September, judge Pohl ejected him for shouting about impediments to the attorney-client relationship. And in August he asked to be taken back to his holding cell after an outburst about an insufficent lunch.
Pretrial proceedings continued with Bin al Shibh’s co-defendants in the courtroom, having compliantly responded “yes” to the judge’s inquiry of whether they understood they could voluntarily skip the open portions of this week’s hearings. After Tuesday’s outburst, Pohl ordered the guards to bring Bin al Shibh to court Wednesday involuntarily once again to see if he would acquiesce to a “yes” or “no” waiver.
Pohl also announced from the bench during Tuesday’s hearing that he would hold a closed session Friday. Neither the public nor the accused are allowed to attend those because they are restricted to attorneys and war-court staff who have special, top-secret security clearances.
Tuesday’s session followed a closed hearing Monday between lawyers and the judge at the war court that excluded the defendants and the public, including six victims of the Sept. 11 attacks who were chosen by Defense Department lottery to watch this week’s hearings.
The Pentagon prosecutor has proposed a January 2015 trial date although the judge has not yet adopted it.
The slow pace of the proceedings has been a source of frustration for the victims.
“The sooner this comes to trial, the better it will be for everyone involved,” said Army Col. John Grote Jr., who was wounded at the Pentagon. “We don’t want closure. We want justice.”
In court, Bin al Shibh was wearing a Navy desert camouflage jacket, a pattern once worn by Guantánamo guards, as was co-defendant Walid bin Attash, 35. The alleged plot ringleader, Khalid Sheik Mohammed, 48, had on a jungle camouflage jacket approved by the judge after his attorneys argued he should be allowed to cloak himself as a fellow combatant at the war court.
Bin al Shibh and Bin Attash are accused of serving as Mohammed’s deputies in the Sept. 11, 2001, terrorist attacks that killed nearly 3,000 people in New York, Pennsylvania and at the Pentagon. Mohammed’s nephew, Ammar al Baluchi, 36, and a Saudi named Mustafa al Hawsawi, 48, are accused of helping provide travel and financial arrangements for the 9/11 hijackers.